A demoralizing consensus on free speech and family grieving

Isn’t it nice when the right-leaning and left-leaning Justices of the U.S. Supreme Court can agree on a decision, rather than battling it out in a 5-4 split? Consensus seems especially happy where political passions are running high, as in the funeral-picketing case Snyder v. Phelps. And so Wednesday’s 8-1 decision in favor of the picketers would appear to be – as the Times Editorial called it – “admirable.” One might even think this is a step toward the much discussed aspiration for a political culture in which decency and mutual respect transcend malice and rancorous distrust.

Alas, nothing could be further from the truth. Chief Justice Roberts’ opinion elevates raw liberty over the duty to take others’ needs and vulnerabilities seriously. Albert Snyder, a private citizen mourning the loss of his son in Iraq, was forced to endure the decision of total strangers to turn his son’s funeral into a media event of national proportions.

Fred Phelps and his one-family religious sect have a message for America: homosexuality is evil and God kills American soldiers to punish America for tolerating homosexuality.

The best way to convey this message, they decided, was to select funerals of fallen American soldiers and travel thousands of miles around the country to land on the unlucky grieving family. The Phelpses peacefully carried signs with words such as “You’re Going to Hell,” “God hates the USA,” “God hates you,” “Fag troops,” and “Thank God for dead soldiers” outside the church in Westminster, Maryland where Snyder’s funeral was taking place.

The question before the Court was whether the basic right to stand on a public street and peacefully express one’s political views entails a right to destroy the intimacy, privacy, and solemnity that social norms traditionally accord to private individuals mourning a lost child.

Stunningly, a near-unanimous Supreme Court did not really confront this issue, announcing – as if it decided this case -- that speech on matters of public concern “cannot be restricted simply because it is upsetting or arouses contempt.” But the Snyder jury was not holding Phelps accountable because his fringe political views were upsetting or contemptible. The jury was holding him accountable for intentionally and opportunistically turning a private person’s mourning period into a media circus, for visiting the vulgarities of public exposure upon him at the most vulnerable moment in his life.

The Court barely acknowledged any argument that the funeral setting was important to the case. Quipping that if the signs had read “‘God Bless America’ and ‘God loves you’” the picketers “would not have been subjected to liability,” Chief Justice Roberts concluded that it was the content of Phelps’s political views generating liability, not his intentional destruction of a family mourning period. The argument does not work, however, for Maryland law would have permitted a jury to impose liability even if picketers held signs with a very different message. Liability would be imposed, for example, if the signs read “Love and Hot Sex, not War!” and if the picketing were done in a way that was sufficiently provocative to monopolize public attention and debase Snyder’s mourning period.

The Phelpses knew their conduct would be deeply hurtful to the Snyders and intentionally engaged in it nonetheless, for their own purposes. It is that fact, not the content of the speech itself, which entitled the jury to impose liability. To be sure, First Amendment doctrine proudly allows political outliers to express their views and to do so provocatively. But nothing in First Amendment law before Snyder v. Phelps blithely permitted a private person’s solemn occasion to be cynically commandeered for pure political grandstanding.

Judges have long been wary of permitting one person to sue another for causing “emotional distress.” And yet one fact pattern has stood out, traditionally: defendants who intentionally, recklessly, or even negligently intrude on those who are grieving the loss of a close family member can be held liable for doing so. Here, we have drawn a line: “Pay attention: this person is at his most vulnerable emotionally! Respect what he is going through! Leave him alone!” Since at least the Nineteenth Century, juries have been permitted to hold people accountable for breaching their duty to be vigilant of the emotional need to mourn the loss of a close family member. That our highest court would discard such a principle in the blink of an eye is, to say the least, demoralizing.

As a teacher and theorist of basic rights, I hold the Supreme Court’s heroic free speech tradition in great esteem. But the challenge of a rights-based legal tradition like our own is to find a way to define those rights so that they harmonize with the duties we owe to others. Snyder versus Phelps is not about whether Phelps can be punished for speaking words that the State of Maryland finds offensive. It is about whether one individual may deliberately trample over the basic needs and vulnerabilities of another in order to amplify his own political views.

The Court should have rejected the lure of happy consensus in this case. Our democracy needs its judges to be willing to say when the license to debase a father’s time to mourn is masquerading as a right of free speech.

Benjamin C. Zipursky is the James H. Quinn Professor of Legal Ethics and Associate Dean for Research at Fordham Law School.